UK RESIDENCE - 3 YEARS AS EEA SPOUSE

[GEORGE81]

Hello everyone,
firstly I am happy that I've found you as I do not seem to find any proper advice neither from the lawyers nor from any law websites. Hope your opinion will shed at least some light to my concern.
now, please see below what I am about to write to the HO regardless the possible disappointment to get clarity from them, and please give your opinions on the issue. Thank you very much in advance!

Dear Sir/Madam,

I write to seek your advice on the settlement on the basis of long residence in the United Kingdom that is now considered under paragraphs 276A to D of the Immigration Rules.

I am due to apply for Indefinite Leave to Remain in the foreseeable future and would greatly appreciate if you could help me to be precisely clear whether my immigration history/status falls within the definition of Immigration Directorate’s instructions.
I have been residing in the UK for almost 10 years now. My 10 years residence is based on the student visas and partly on the right of residence under the EEA regulations as a family member of the EEA National.
According to Immigration Directorate’s instructions, provided the applicant meets all the other requirements of the long residence rules, discretion may be exercised to count the time, spent in the UK with the right of residence under the EEA regulations, as if it were a lawful residence.

Quote:

‘‘ 2.3.8 Time spent in the UK with a right to reside under the EEA Regulations
Applications may be received from third country nationals who have spent part of their time in the United Kingdom as the spouse, civil partner or other family member of an EU/EEA national exercising their treaty rights to reside here, but who have not been able to qualify for permanent residence. Alternatively, we may receive applications from former family members who have had a retained right of residence (see Chapter 5 of the European Casework Instructions for more details).
During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006. ‘’

Having read the definition above, unfortunately I do not acquire full understanding of the main concept of the rule.
I have been married to an EEA national since 2007. My Spouse has continually been exercising treaty rights. Provided our marriage continuous to be subsisting, I am not still certain if the discretion may be exercised to count the time, I spent in the UK with the right of residence under the EEA regulations, as if it were a lawful residence, hence to be granted the settlement.

Therefore, I am not convinced whether I qualify for the settlement and if I should apply for ILR.

I would be grateful if given more clarity on the above in order to obtain full awareness of the rule in question and my eligibility for Indefinite Leave to Remain.

Yours faithfully,

[ejw4h9]

I am genuinely not trying to be rude, but what was the question?

[GEORGE81]

I am genuinely not trying to be rude, but what was the question?

No worries:)
if you read a quote below from the home office website regarding long residence you will see that the question is about compatibility of UK legislation and EEA regulations. what it says is that if one spent 10 years in the UK partly as a student/work permit, etc and partly as a family member of EEA national (under EEA regulations) then discretion may be exersiced to count the years spent under EEA regulations as if they were lawful. in other words, even though i spent 3 years absolutely legally but under EEA regulations, yet it would not mean automatic eligiblity for IRL.
which means that it is going to be up to HO to decide to grant ILR.
as far as understand it all depends on the caseworker to decide/under his discretion to count the years spent under EEA regulations, as though they were lawful and continuous years.
and finally the question is: what are my chances if it all depends to HO to consider the application for my favour?
this is a bit confusing that is why you may not notice a problem.
i'd love someone to give an opinion on this.

quote below:

‘‘ 2.3.8 Time spent in the UK with a right to reside under the EEA Regulations
Applications may be received from third country nationals who have spent part of their time in the United Kingdom as the spouse, civil partner or other family member of an EU/EEA national exercising their treaty rights to reside here, but who have not been able to qualify for permanent residence. Alternatively, we may receive applications from former family members who have had a retained right of residence (see Chapter 5 of the European Casework Instructions for more details).
During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006. ‘’

[Obie]

Yes you qualify for Long term residency.

Time spent as family member of an EEA national in the UK, counts towards the 10 years continuous residency requirements.

[GEORGE81]

Yes you qualify for Long term residency.

Time spent as family member of an EEA national in the UK, counts towards the 10 years continuous residency requirements.

ok, thanks for that, but why then it should be under the discretion of the caseworker? or how would this discretion be exercised? cheers

[Obie]

The reason is because you were not in the UK under immigration control and haven't had a leave under 276a of the immigration rule for the whole of your stay. Therefore the Caseworker would use their discretion on whether to take time spend under EU legislation, if you meet the other criteria.

You have a chance of getting it. If it is refused, they will have to provide you with a valid explanation.

[GEORGE81]

The reason is because you were not in the UK under immigration control and haven't had a leave under 276a of the immigration rule for the whole of your stay. Therefore the Caseworker would use their discretion on whether to take time spend under EU legislation, if you meet the other criteria.

You have a chance of getting it. If it is refused, they will have to provide you with a valid explanation.

that makes sense to me Obie but do you think the bit they wrote in the definition may be a valid explanation for the refusal?can i argue with that explanation?
quote:

''During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.''

could this be a valid explanation? if yes then the refusal is rather guaranteed even before the application submission:)
any way to argue with this?
cheers

[Obie]

If the applicant was here with a right to reside under the EEA Regulations when they left the UK, and was readmitted under the EEA Regulations, then the applicant’s residence may be treated as continuous (provided that their total absences do not exceed eighteen months and no individual absence exceeds six months).

This is what the case worker has to look at , most importantly.

If you meet that criteria as well as the others, there is no reason why they should refuse you, except if you lived outside the UK for more than 18 months.

[GEORGE81]

If the applicant was here with a right to reside under the EEA Regulations when they left the UK, and was readmitted under the EEA Regulations, then the applicant’s residence may be treated as continuous (provided that their total absences do not exceed eighteen months and no individual absence exceeds six months).

This is what the case worker has to look at , most importantly.

If you meet that criteria as well as the others, there is no reason why they should refuse you, except if you lived outside the UK for more than 18 months.

thanks Obie,
I have obtained residence card while in the UK and while on a student Visa. i, in fact, switched from a student Visa to EEA one while in the UK.
is this anything for my favour?

[Obie]

2.3.9 Time spent here while exempt from Immigration Control
Effect on Continuous lawful residence
If a person has spent time in the UK exempt from immigration control (e.g. as a diplomat or member of the Armed Forces), that time should be counted as continuous lawful residence.
When a period of exemption ends, a person is given 90 days in which to submit an application for leave or depart the UK. This is known as ‘deemed leave’ (the person does not receive an endorsement in their passport). If a person submits an in-country application within 90 days of their exemption ending and is subsequently granted a period of leave, they will not have broken their continuous lawful residence. Those remaining beyond the 90 days deemed leave who do not submit an application for further leave will break their continuous lawful residence.

(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.

You can use this to back your case up. Time spend while not under immigration control counts as Continuous Resident.

Therefore this provide you with an area in law to defend any refusal by a caseworker, on the basis that your Leave was not granted under 276a of the immigration rule.

[GEORGE81]

thanks so much, Obie!!! i really appreciate this!:)